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Complaint no. LA/Fi/467 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor Kay Morrison of Fife Council

1. Complaint number LA/Fi/467 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillor Kay Morrison ("the respondent") an elected member (Labour) of Fife Council.

2. It was alleged that the respondent had contravened the Code, in particular, section 7.2 (Dealing with Planning Applications).

3. Mr Iain Smith, MSP, ("the complainant"), alleged that the respondent, who was Fife Council's Strategic Spokesperson for Schoolchildren, sought to influence an impending planning application for an all-weather sports facility at Bell Baxter High School in Cupar, which was shortly to be considered by an Area Committee, by making press comment criticising the stance of Liberal Democrat members on the committee who had been involved in previous consideration of the matter. She made particular mention of the fact that lottery funding had been lost when a previous planning application had been refused by the area committee. In the article she was also critical of her opponents on other local issues.

4. In reply, the respondent raised no issue with how her remarks had been reported. She considered her job was to speak out to ensure that children's needs were recognised and addressed. It was her clear position that the school had needed the sports facility for years. It was her assessment that the facility would already exist if local councillors had not procrastinated, thereby losing an opportunity and then funding.

5. I found that the original planning application, considered on 8 February 2005, in respect of a sports pitch was a highly sensitive one. 36 objections relating to the original proposal, which envisaged opening times till 10pm, were received, as well as a petition signed by 53 signatories objecting to the proposal. The application also attracted 158 letters of support. The Committee had previously continued the application for further information to be obtained. Some additional information was available for the meeting and it was also confirmed that the closing time of the facility was now proposed as 9pm. The detailed Planning Report contained the following recommendation: "Members are asked to note and endorse the report and to approve the application with these additional safeguards and any additional comments the Committee wishes to make. The application will then be advertised as a formal Notice of Intention to Develop and at the end of the period the application will be referred to the Scottish Executive for a final decision".

6. The Minute recorded that, following a 9-7 vote by members of the Committee, the decision was that the proposal was not acceptable on the grounds that it would be detrimental to the residential amenity of the area because of the physical dominance of the site, the potential for noise disturbance and light spillage.

7. The Committee's vote demonstrated a clear division on the merits of the proposal before it. From the information before me, the particular decision reached was well within the range of outcomes reasonably available to the Committee after due consideration of the detailed information available. It had also to be said that there were a significant number of Committee members who, after consideration of the proposal, felt the planning recommendation was appropriate.

8. The press article complained of contained a number of trenchant comments by the respondent about her political opponents on a number of aspects but with a particular focus on the individual planning proposal. It also contained a public response from Councillor Margaret Kennedy (Liberal Democrat) in rebuttal. It was clear from the nature of Councillor Kennedy's remarks that she was being scrupulous about her potential duties and statutory responsibilities as a member of the Committee which was to consider a further application for the proposal. She specifically referred to her duties and she was to be commended for making clear that councillors taking individual planning decisions have to follow due process. I considered that such a public stance could only serve to assist maintenance of public confidence in the planning system, which was one of the particular objectives envisaged by Parliament in putting a framework in pace to support Ethical Standards in Public Life, and which resulted in approval of the Councillors' Code of Conduct.

9. I found that a significant part of the Code was concerned with detailed duties on councillors relative to planning applications. I had to consider this matter in relation to those detailed responsibilities set out in section 7. The section, as framed, was not designed to place such obligations on councillors who did not form part of the adjudication process on such individual applications.

10. I also gave consideration to whether or not the remaining sections of the Code placed a particular obligation on the respondent not to act as she did. As well as the Code itself, I also had to take into account the developing case law which surrounded the conduct of councillors. (Although dealt with by the English Courts, it would also, in my view, have been considered persuasive by our own Judiciary). The focus of the judicial reviews centred on the appropriate balance to be struck between the conduct obligations of councillors and the right to freedom of expression in terms of the European Convention on Human Rights. As matters stood, as there was no relevant Code obligation on the respondent which she had breached in this instance, her comments would have been adjudged as freedom of expression.

11. That said, I considered it was incumbent on any councillor to take particular care, in situations like this case, where the Council was not only applicant/developer but also the regulator/decision maker. In her remarks the respondent, whilst acknowledging that the previous planning application had involved "an admittedly difficult decision", was patently seeking to publicise her position on the matter as Strategic Spokesperson for Schoolchildren. In doing so, she could have been more mindful of the need to maintain public confidence in the planning process and could have framed her remarks with greater care when commenting on the individual applications submitted by the Council, as developer.

12. I also considered that the complaint raised an issue which I referred to Fife Council. It related to the matter of a Member Protocol which I understood had been adopted by the Council. I believed this was designed to deal with issues which arose between councillors and provided for various matters to be discussed and potentially resolved within the Council's own internal processes, Whilst it might have been the view of Fife Council that the existing Protocol did not apply in this instance, it was the view of the Standards Commission that, wherever possible, "inter-councillor" disputes should be dealt with at Council level. The respondent, on this particular occasion, was not subject to the same Code restraints as other councillors involved in the individual planning adjudication and she clearly considered it was opportune to make public comment on a number of matters contrasting her political stance with those of her opponents and, in particular, referring to an individual planning application. In contrast, Councillor Kennedy had fully realized that she did not have the same flexibility. At other times in the future I considered that the position might, of course, be reversed and an appropriate Protocol, (or extending the current Protocol), for such particular situations might have been considered a beneficial mechanism in such circumstances.

13. Having considered the information that arose from my investigation, I concluded that Councillor Kay Morrison had not contravened the Councillors' Code of Conduct.

D Stuart Allan,
Chief Investigating Officer.
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
Fife
KY11 2UU
03 October 2006